The Gazette

Raking over the ashes: rights to the body and funeral disputes

Ruth Pyatt looks at the issues surrounding who has the right to the body after death.

According to a provider of funeral plans in the UK, a quarter of deaths in the UK
lead to family disputes, and over a fifth of these disputes concern the final resting
place of the deceased’s ashes or coffin. Of the disputes disclosed, 49% apparently
reached their peak during the funeral itself.

Perhaps that is not such a surprising statistic, when we take into account the number
of people who have potentially competing claims. But who does have first right to
the body or ashes? Is it the person who paid for the funeral, the next of kin, the
person who signed the cremation form, the personal representative, or the coroner?
And who decides who has priority? Is it the undertaker, the hospital, the court, or
is it the deceased (in their will)? The basic starting point is that:

Nobody owns a body – there is no property in a dead body.

The person entitled to possession of the body is the person who is under a duty to
dispose of the body.

A crematorium authority must hand over the ashes to the person who delivered the body
for cremation.

Unfortunately, similar to family disputes, funeral disputes are often complex, and
many cannot simply be resolved by applying the above three rules.

It should flow from the ‘no property in a corpse’ rule; that it is not possible for
a body to be gifted or disposed of by a will, bought or sold. However, statute permits
that a body (or part of it) may be donated for medicine or science, and whether or
not a body can be disposed of in a will is a topic that is up for debate, too.

What about the testators’ wishes?

Until the end of last century, it was generally accepted law that the purpose of a
will was to deal with the disposal of property, and since a body was not property,
a testator’s instructions for the disposal of it were not legally binding or capable
of being enforced. This, however, has been subject to challenge under Article 8 of
the Human Rights Act 1998 relating to respect for family life, and is likely to also
be open to challenge under Article 9, relating to freedom of conscience, thought and
religion.

Who, then, is entitled to possession of the body? The law is quite specific in respect
of this question. As we have seen, it is the person who is under a duty to dispose
of the body, and the right to possession starts at the time of death.

Many would consider that the next of kin, a surviving spouse or partner, or other
close family, would have first right, but that’s not necessarily the case:

First, a hospital has the right to detain a body if it is deemed that the body may
be infectious, or if someone has died from a notifiable disease.

The coroner then has first right to take possession of the body. This is a right to
take temporary possession, in order to determine the cause of death. Once the coroner
has completed their examination, the body will be released.

If there is a will, the person entitled to possession is the named executor (whether
a family member or not).

If there is no will, it is the person who has priority on intestacy (under rule 22
of the Non-Contentious Probate Rules).

Under a distinct set of rules, the parents of a minor child have a duty to arrange
a funeral.

The term ‘next of kin’ means little in this regard. A surviving spouse may be entitled
to possession of the body and to arrange the funeral by virtue of their appointment as an executor, or under the rules of intestacy, but
in the case of an unmarried couple, where there is a death and no will, the surviving
partner would have no automatic say in respect of the funeral.

That said, the fact that an executor or administrator is entitled to possession of
a body does not mean that they will arrange the funeral without consultation. Executors
(especially professional executors) often delegate responsibility for arranging a
funeral to family (though the executor has the right to the final say and can overrule
family members).

Disputes among executors

Where there is a dispute among executors and compromise cannot be reached, or if a will is subject to challenge (for example,
through grounds of lack of capacity, undue influence, or want of due execution), there
is recourse to the courts, although this will clearly lead to delay in the burial
or cremation. In one reported case, seven months passed, during which time the deceased’s
body remained in the custody of the coroner.

The statutory rules and orders that regulate cremation determine that ashes can only
be handed over to the person who delivered the body for cremation (usually the executor).
Crematorium paperwork contains questions designed to prevent the cremation of a body
without the knowledge of close relatives and executors. Where disputes do arise about
the ashes, and such cases appear before the court, the judgements given have not been
consistent.

It appears that there is no legal definition of ashes, and whether ashes should be
treated along with the body (under common law) and be incapable of being owned, or
have the status of property, remains untested.

Finally, if this article gives the impression that lawyers make a lot of money out
of death, according to a survey (by the same funeral plan provider that found that
a quarter of deaths in the UK led to family disputes), those who have a legal career
in their lifetimes have the most expensive funerals…

About the author

Ruth Pyatt is a solicitor at Steeles Law, and advises on wills, inheritance tax, estate planning and probate, lasting powers
of attorney and the creation and administration of trusts. [Ruth has since moved to
Birketts Solicitors.]

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